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Judge under fire for comparing incest to homosexuality

TANYA NOLAN: The Greens say they're considering making a formal complaint about a New South Wales District Court judge who allegedly compared incest to homosexuality.

Judge Garry Neilson is quoted as saying that the community may no longer see sexual contact between siblings as "unnatural" in the same way gay sex has become widely accepted.

He reportedly made the remarks in April during the case of a 58-year-old man charged with raping his younger sister.

The New South Wales Greens say the judge has already been referred to the Judicial Commission and a further request has been made to hand the case to another judge.

Sarah Dingle reports.

SARAH DINGLE: A 58-year-old man known as MM is charged with raping his younger sister in the family home in 1981.

District Court Judge Garry Neilson is presiding over the case.

In early April a jury was empanelled and Judge Neilson allegedly said that incestuous sexual relations between two adults might no longer be seen as "taboo" by society.

According to the Sydney Morning Herald, the judge said that "by that stage they are both mature adults" and that incest only remains a crime to "prevent chromosomal abnormalities" but that can be avoided by the availability of contraception and abortion.

New South Wales Greens MP David Shoebridge says those remarks are disturbing.

DAVID SHOEBRIDGE: Well, they're deeply troubling and in fact, extraordinarily surprising that any member of judiciary in this state would be making those pronouncements from the bench but they are subject to review by the Court of Criminal Appeal and potentially by the Judicial Commission, so it's fortunate we have those robust review procedures.

SARAH DINGLE: The Crown Prosecutor in the case asked the Criminal Court of Appeal to replace Judge Neilson with another judge.

The Court of Criminal Appeal has reserved its decision but there's also the Judicial Commission which investigates complaints about the judiciary.

David Shoebridge says the Greens may make a complaint to the Judicial Commission but others have already done so.

DAVID SHOEBRIDGE: We will absolutely be reserving the right to refer this to the Judicial Commission but we will be awaiting the outcome of the Court of Criminal Appeal before we do that, and as I understand it already, there has been a number of individuals that have referred it themselves.

We have a criminal law that is determined in accordance with law, not with personal whim or fancy and of course judicial discretion can apply at the moment of sentencing but a crime is a crime and there's no place for a judge to insert their own personal preference in place of well established criminal law.

SARAH DINGLE: Professor Mark Findlay from the University of Sydney's Institute of Criminology says saying that two consenting adults can have sexual relations misses a key feature of incestuous relationships.

MARK FINDLAY: There is some thinking amongst lawyers and those who would make pronouncements on a matter like this, that times change and whether its homosexuality or whether its adultery or whether its incest, we need to recognise a change in community morality.

The other side, however, is that whether it be a concern for science or a concern for morality, there is the additional consideration that family relationships produce situations where the consent of the woman involved might have been influenced by those family relationships and therefore the question becomes a question about whether consent was valid.

SARAH DINGLE: Judges are allowed to take a number of things into consideration when overseeing a case - case law, precedence, those kind of things - but can they take into consideration their own personal views that the crime they're currently examining should not be a crime?

MARK FINDLAY: No, they can't. I mean judges are technicians; they've got to deal with the law as it stands. They can make observations outside a case or they can even make an observation when sentencing but it appears from the reports you refer me to that this is a matter that has occurred during the trial itself and this is not just an observation which is passing, it's an observation on whether the offense is one which reflects, validly reflects what the law should be.

I would be concerned that judges are moving into a realm of projecting on law reform in a case where that would be very inappropriate.

SARAH DINGLE: The trial hearing is due to begin in September.

TANYA NOLAN: Sarah Dingle reporting.

And the New South Wales Attorney-General, Brad Hazzard, says he's now referred Judge Garry Neilson to the Judicial Commission for investigation over his stance on incest.

Mr Hazzard says he's also asked for Judge Neilson to be removed from presiding over any criminal trials.